Popescu v. Cal. Highway Patrol CA2/6 ( 2021 )

Filed 6/2/21 Popescu v. Cal. Highway Patrol CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SORIN POPESCU et al., 2d Civil No. B306287
(Super. Ct. No. 56-2018-
Plaintiffs and Appellants, 00520506-CU-CR-VTA)
(Ventura County)
v.
CALIFORNIA HIGHWAY
PATROL et al.,
Defendants and Respondents.
A drunk and off-duty California Highway Patrol
(CHP) officer shot Sorin Popescu in the back while Popescu was
standing in the entry way of his own home. Popescu, his wife and
their children (appellants) conclusionally allege in their second
amended complaint that the officer, Trever Dalton, was acting in
the course and scope of his employment at the time. They further
allege that the CHP is liable for Dalton’s unjustified use of force
and for its negligent failure to train, supervise and discipline
Dalton. The trial court sustained the CHP’s demurrer to their
second amended complaint without leave to amend. Appellants
contend the trial court erred when it concluded their complaint
failed to state a cause of action against the CHP and when it
denied them leave to file a third amended complaint. We affirm.
FACTS
In December 2017, the Thomas Fire destroyed or
damaged numerous residences and caused widespread power
outages in Ventura. Appellants lived on a cul-de-sac in a
neighborhood that lost power. As the family was trying to decide
whether to evacuate, appellant Sorin Popescu heard a noise from
the house next door. He went to investigate, worried someone
might be looting his neighbor’s house. Once outside, appellant
encountered Dalton, approaching the neighbor’s door.
Dalton was employed as a California Highway Patrol
(CHP) officer. He is not alleged to have been in uniform, driving
a marked black and white CHP car, or to have displayed a badge
or other identification. Popescu asked Dalton who he was.
Popescu decided Dalton was drunk and told him to leave.
Instead of leaving, Dalton started questioning Popescu about his
identity and where he lived. He became increasingly aggressive
with Popescu. He repeatedly told Popescu that he was a cop and
was carrying a gun.
Dalton was riding a bicycle. As the two men
exchanged words in the street, Dalton rode the bike in circles
around Popescu, eventually hitting him in the leg with the wheel.
Popescu grabbed the handlebars and pushed the bicycle away.
This caused the intoxicated Dalton to fall off the bike. He began
yelling that Popescu had assaulted him.
Popescu retreated and called 911. He told the
operator about Dalton’s behavior including his claim that he was
a police officer and that he said he had a gun. Dalton continued
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to make threatening statements while Popescu was on the phone.
He said Popescu didn’t need to call the police because Dalton was
the police. At one point during the interaction, Dalton used his
phone to take a picture of the license plate on Popescu’s car.
Popescu returned to his house and talked with his
wife about the conflict with Dalton. Meanwhile, Dalton had a
confrontation with another neighborhood resident, Cason White.
Dalton asked White, who was standing outside with his son,
whether White was calling the police. He said White should call
the police because, “‘it’s about to go down’” and then Dalton
pulled a gun from an ankle holster. White went into his house to
call 911.
While White was calling 911, Popescu was standing
inside his house, near the open front door, talking to his wife with
his back to the street. Dalton walked up the driveway toward the
front door. Neighbors heard Dalton say, “‘put your gun down.’”
Popescu was not armed and had not been at any point during his
confrontation with Dalton. Dalton fired two shots, one of which
hit Popescu in the back.
Popescu suffered severe injuries and spent five days
in the hospital. Dalton was taken into custody and charged with
firearms and assault offenses.
About three months before the shooting, in
September 2017 one of Dalton’s neighbors called the CHP office
in Ventura to complain about his behavior in the neighborhood.
The neighbor reported that, while intoxicated, Dalton walked
around the neighborhood holding a live rooster and asking
people, “‘do you want to pet my cock.’” Dalton would also stand in
the street at night and stop passing motorists for no reason.
Dalton’s co-workers reported that he “‘drunk-dialed’” them and
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made inappropriate and unprofessional comments to them. The
supervisors referred Dalton to the employee assistance program
to address these issues and his admitted alcohol consumption
practices.
PROCEDURAL HISTORY
Appellants’ first and second amended complaints
attempted to allege causes of action for assault and battery,
intentional and negligent infliction of emotional distress,
negligence, negligent supervision, training and discipline,
violation of the Bane Act (Civ. Code, § 52.1), and violation of civil
rights, 42 U.S.C. § 1983. Both pleadings alleged the CHP was
vicariously liable for Dalton’s misconduct because he was acting
within the course and scope of his employment when he shot
Popescu. In support of this conclusion, appellants alleged that:
Dalton carried a concealed, loaded firearm during the incident; he
repeatedly invoked his status as a police officer; he photographed
the license plate on Popescu’s car and asked questions as if he
was investigating something; and he gave commands to Popescu
as if he was preparing to arrest Popescu. Appellants further
alleged the shooting occurred during a state of emergency
declared by the governor due to the Thomas Fire. During the
state of emergency, all law enforcement officers were deemed to
be on-duty at all times. Appellants also alleged that officers are
authorized at all times to carry out law enforcement functions
such as making arrests. (See, e.g., Pen. Code, §§ 836, 25450,
25900; Veh. Code, § 2253.)
In addition to its respondeat superior vicarious
liability theory, appellants alleged the CHP is directly liable for
its own negligent training, supervision and discipline of Dalton.
In support of this theory, appellants alleged that Dalton’s
4
supervisors were aware, before the shooting occurred, that Dalton
had a drinking problem. Supervisors were also aware that
Dalton’s neighbors had complained to the CHP that he behaved
in intimidating and unprofessional ways in the neighborhood. He
also made inappropriate comments to neighbors and to co-
workers. The CHP had referred Dalton to its Employee
Assistance Program for counselling.
The CHP’s demurrers argued appellants could not
allege a cause of action against it on a respondeat superior theory
because Dalton was off-duty and not acting within the course and
scope of his employment when the shooting occurred. The CHP
contended it had no direct liability for failure to supervise Dalton
because it had no special relationship with appellants.
In sustaining the demurrer to appellants’ first
amended complaint, the trial court noted, “All of the factual
allegations plead[ed] are of an off-duty officer.” Dalton appeared
to be drunk, was not in uniform and was not using a CHP vehicle.
Although he referred to himself as a “cop,” Dalton did not identify
the agency he worked for or display a badge. Popescu’s actions
reflected that he did not believe Dalton was acting as a peace
officer. For example, Popescu told Dalton to leave and did not
answer his questions. He pushed the handlebars of Dalton’s bike.
Popescu walked away from Dalton while Dalton was asking him
questions. Because the factual allegations did not establish
Dalton was acting within the scope of his employment when he
shot Popescu, the trial court concluded the complaint failed to
state a cause of action against the CHP.
Appellants amended their complaint to allege
additional facts in support of their claim that Dalton was acting
within the course and scope of his employment. They also added
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causes of action alleging the CHP and Dalton’s supervisors were
negligent in their supervision, training and discipline of Dalton.
Respondents again demurred on the grounds that Dalton was not
acting within the course and scope of his employment. They
contended the CHP had no direct liability for negligence because
it had no special relationship with appellants. The trial court
agreed with respondents and sustained their demurrer without
leave to amend.
STANDARD OF REVIEW
We review the second amended complaint “de novo to
determine whether [it] alleges facts sufficient to state a cause of
action under any legal theory or to determine whether the trial
court erroneously sustained the demurrer as a matter of law.”
(Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) “In doing
so, we treat the demurrer as admitting all material facts properly
pleaded.” (C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 866.) The complaint is to be given a
reasonable interpretation and is read as a whole, with all its
parts in context. (Ibid.)
DISCUSSION
Vicarious Liability
“A public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would,
apart from this section, have given rise to a cause of action
against that employee or his personal representative.” (Gov.
Code, § 815.2, subd. (a).) Under the doctrine of respondeat
superior, summarized in this statute, “an employer may be held
vicariously liable for torts committed by an employee within the
scope of employment.” (Mary M. v. City of Los Angeles (1991) 54
6
Cal.3d 202, 208 (Mary M.).) Intentional torts and criminal acts
may fall within the scope of the tortfeasor’s employment, even if
the employer did not authorize the employee to commit those
acts. (Id. at p. 209; Perry v. County of Fresno (2013) 215
Cal.App.4th 94, 101 (Perry).)1
The risk that an employee will commit an intentional
tort or crime “‘arises out of employment’” when “‘“in the context of
the particular enterprise an employee’s conduct is not so unusual
or startling that it would seem unfair to include the loss resulting
from it among other costs of the employer’s business. [Citations.]
In other words, where the question is one of vicarious liability,
the inquiry should be whether the risk was one ‘that may fairly
be regarded as typical of or broadly incidental’ to the enterprise
undertaken by the employer. [Citation.]” [Citation.] Accordingly,
the employer’s liability extends beyond his actual or possible
control of the employee to include risks inherent in or created by
the enterprise.’” (Farmers Ins. Group v. County of Santa Clara
(1995) 11 Cal.4th 992, 1003 (Farmers Ins. Group), quoting Perez
v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 (Perez).)
By contrast, “vicarious liability is deemed
inappropriate where the misconduct does not arise from the
conduct of the employer’s enterprise but instead arises out of a
personal dispute [citations]. In such cases, the risks are
engendered by events unrelated to the employment, so the mere
1 Nothing in Inouye v. County of Los Angeles (1994) 30
Cal.App.4th 278, compels reversal. There, the court held only
that the County’s “policy of deeming its off-duty safety police
officers to not be engaged in the performance of their duties is
ineffective to insulate the County from respondeat superior
liability . . . .” (Id. at p. 280.) No written policy is here at issue.
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fact that an employee has an opportunity to abuse facilities or
authority necessary to the performance of his or her duties does
not render the employer vicariously liable.” (Farmers Ins. Group,
supra, 11 Cal.4th at p. 1006.)
Mary M., supra, 54 Cal.3d 202 and Perry, supra, 215
Cal.App.4th 94 illustrate this distinction. In Mary M., a police
officer who was on duty, in uniform and driving a patrol car,
detained Mary M. using the red lights on his patrol car. He
ordered her into the car and drove her to her home, where he
pushed her onto her couch. When Mary M. screamed, the officer
threatened to take her to jail. Then the officer raped her. (Mary
M., supra, at p. 221.) Our Supreme Court held a jury could find
the officer was acting in the course of his employment because he
used the authority given to him by his employer to commit the
rape. (Id. at pp. 207, 221.)
In Perry by contrast, a corrections officer at the
county jail got into a car accident while he was off duty, driving
his own car. Perry was injured in the accident and sued the
officer. The officer used jail computers to find the mailing
addresses of inmates. He then wrote threatening letters to the
inmates, in Perry’s name, hoping to provoke inmates into
retaliating against Perry and intimidating him into dropping the
lawsuit. The court of appeal found no causal nexus between the
officer’s employer and his letter writing scheme because the
officer’s dispute with Perry “had absolutely no connection to [the
officer’s] employment.” (Perry, supra, 215 Cal.App.4th at p. 102.)
The car accident and resulting lawsuit “were not work related.”
(Ibid.) Although the officer had access to inmates’ personal
information through his work, “[t]he motivation behind [his]
scheme was not generated by, or an outgrowth of, workplace
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responsibilities, conditions or events. Rather, [the officer’s]
endeavor was purely personal. Accordingly, [the officer’s]
wrongful tort was outside the scope of his employment.” (Ibid.)
In Mary M., the rapist encountered, detained,
transported and subdued his victim by (mis)using the weapons,
uniform, vehicle and other features of law enforcement authority
provided to him by his employer. In Perry, the tortfeasor
obtained information through his employer that he then used to
intimidate his opponent in a dispute that was unrelated to his
employment.
The question here is whether appellants have
sufficiently alleged a causal nexus between Dalton’s criminal act
and his employment as a CHP officer. Like the trial court, we
conclude they have not. Dalton’s violence toward Popescu had
nothing to do with his employment. Dalton was not driving a
CHP car, was not being paid by the CHP at the time of the
shooting, and was not enforcing the California Vehicle Code. He
was riding his bicycle around a residential neighborhood while
drunk. There is no allegation that Dalton claimed to be
investigating a crime or performing a public safety function such
as warning residents about the Thomas Fire or encouraging them
to evacuate. When Popescu asked Dalton what he was doing,
Dalton started to argue with him. He said he was a cop and that
he had a gun, but never displayed a badge or identified his
employer. He was not in uniform. There is no allegation that
Dalton verbally threatened to arrest Popescu or told Popescu he
was under arrest. When Popescu walked away from him, Dalton
did not immediately follow or order him to stop. Instead, he
started arguing with another neighborhood resident. Even as he
walked up the pathway to appellants’ front door with his weapon
9
drawn, Dalton did not announce himself as a police officer. He
said, “drop your gun,” and then fired. There is no allegation that
Dalton used a CHP issued firearm.
Appellants’ second amended complaint alleges facts
that describe a “personal dispute” Dalton created with an
innocent resident, not misconduct in the exercise of his law
enforcement responsibilities or authority. (Farmers Ins. Group,
supra, 11 Cal.4th at p. 1006; Perry, supra, 215 Cal.App.4th at p.
102.) The risk that an officer would get drunk, start an argument
with a stranger and then shoot that person is not one “‘“that may
fairly be regarded as typical of or broadly incidental” to the
enterprise undertaken by [the CHP]. [Citation.]’” (Perez, supra,
41 Cal.3d at p. 968.) Because Dalton’s confrontation with
Popescu was not generated by, or an outgrowth of, his workplace
responsibilities, Dalton’s shooting of Popescu was outside the
scope of his employment.
Appellants contend the trial court placed too much
emphasis on the fact that Dalton was “off duty” when the
shooting occurred. They note Dalton was technically on duty
because of the fire-induced state of emergency. We agree that
Dalton’s on-duty or off-duty status is not dispositive. As we have
explained, the dispositive question is whether there is “a causal
nexus between the tort and the employee’s work, i.e., the tort (the
[shooting]) must be engendered by or arise from the work.”
(Perry, supra, 215 Cal.App.4th at p. 101; see also Lisa M. v.
Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
297-298.) That causal nexus is absent here, without regard to
Dalton’s on or off-duty status, because his confrontation with
Popescu was not related to CHP work responsibilities.
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Direct Liability
Appellants allege the CHP and Dalton’s supervisors
were aware of his abusive drinking and aggressive,
unprofessional behavior toward civilians and toward his co-
workers. Respondents failed to protect the public from Dalton’s
growing dangerousness by referring him to voluntary counseling
rather than disciplining him, suspending him or requiring him to
complete a mandatory counseling or substance abuse program.
Appellants allege respondents’ negligent failure to train,
supervise or discipline Dalton were a proximate cause of their
damages. They allege respondents are directly liable for their
negligence in training, supervising and disciplining Dalton.
“Except as otherwise provided by statute: [¶] (a) A
public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or a public
employee or any other person.” (Gov. Code, § 815.) The direct
tort liability of a public entity “must be based on a specific statute
declaring [the public entity] to be liable, or at least creating some
specific duty of care, and not on the general tort provisions of
Civil Code section 1714. Otherwise, the general rule of immunity
for public entities would be largely eroded by the routine
application of general tort principles.” (Eastburn v. Regional Fire
Protection Authority (2003) 31 Cal.4th 1175, 1183 (Eastburn); see
also de Villers v. County of San Diego (2007) 156 Cal.App.4th 238,
247 (de Villers).)
No statute imposes direct liability on the CHP or its
supervisory employees for negligence in the training, supervision
or discipline of an officer. Similarly, no statute imposes on the
CHP a specific duty of care to the general public relating to the
training, supervision or discipline of officers. (Munoz v. City of
11
Union City (2004) 120 Cal.App.4th 1077, 1112-1113, disapproved
on other grounds in Hayes v. County of San Diego (2013) 57
Cal.4th 622, 639.) Finally, appellants allege no facts suggesting
that respondents “under[took] a special protective relationship
toward” appellants. (de Villers, supra, 156 Cal.App.4th at p.
249.) Respondents are not alleged to have encouraged Dalton to
harass his neighbors, acted to increase the risk that he would do
so, or increased residents’ vulnerability to his violent outbursts.
(M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 706.) The
second amended complaint thus fails to allege a cause of action
for negligence against respondents. The trial court correctly
sustained the demurrer to the fourth and fifth causes of action.
Appellants argue that respondents improperly
withheld from the discovery process Dalton’s mental health
records. These records are relevant, appellants contend, because
they demonstrate respondents’ knowledge of, and negligent
failure to protect appellants from Dalton’s mental health and
addiction issues. Because we have concluded appellants cannot,
as a matter of law, allege causes of action for negligence against
respondents, we need not address these contentions.
Violation of Civil Code § 52.1
Appellants’ sixth cause of action alleges Dalton
violated the Bane Act (Civ. Code, § 52.1)2 because he shot
2 Civil Code section 52.1, subdivision (b) provides, “If a
person or persons, whether or not acting under color of law,
interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by
the Constitution or laws of the United States, or of the rights
secured by the Constitution or laws of this state, the Attorney
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Popescu while attempting to arrest him without probable cause,
in violation of the Fourth Amendment. Appellants further allege
the CHP is liable for damages associated with Dalton’s
misconduct because he was acting in the course and scope of his
employment when he shot Popescu.
The Bane Act does not create direct liability on the
part of a state agency for an employee’s conduct that violates
constitutional or statutory rights. As a result, appellants fail to
allege a cause of action against the CHP for violation of the Bane
Act. (Gov. Code, § 815; Eastburn, supra, 31 Cal.4th at p. 1183.)
In addition, for the reasons we have already stated, appellants
fail to allege facts showing respondents’ vicarious liability for
Dalton’s conduct. For these reasons, the trial court correctly
sustained the demurrer with respect to appellants’ sixth cause of
action.
Respondents further contend the demurrer was
properly sustained because the complaint does not allege Popescu
believed Dalton was actually a police officer, or believed himself
to be under arrest prior to the shooting. (Brendlin v. California
General, or any district attorney or city attorney may bring a civil
action for injunctive and other appropriate equitable relief in the
name of the people of the State of California, in order to protect
the peaceable exercise or enjoyment of the right or rights
secured.” Subdivision (c) of the statute allows a person “whose
exercise or enjoyment of rights secured by the Constitution or
laws of the United States, or of rights secured by the Constitution
or laws of this state, has been interfered with, or attempted to be
interfered with” to file an action for damages or equitable relief
against the interfering person.
13
(2007) 551 U.S. 249 [seizure of a person for purposes of the
Fourth Amendment occurs when, in light of surrounding
circumstances, a reasonable person would believe he or she was
not free to leave]; Shoyoye v. County of Los Angeles (2012) 203
Cal.App.4th 947, 959 [Bane Act requires allegation of threatening
conduct independent of alleged interference with or violation of
civil rights].) We need not address these contentions because we
have concluded the demurrer was properly sustained on other
grounds.
Leave to Amend
Appellants contend the trial court abused its
discretion when it denied them leave to file their proposed Third
Amended Complaint. The proposed amended complaint would
have added factual allegations relating to the CHP and the
supervisors’ knowledge of Dalton’s substance abuse, mental
health challenges and prior misconduct. Appellants would also
allege that Dalton was on duty at the time of the shooting,
because of the state of emergency and that, when he shot
Popescu, Dalton was using police powers to effect an unlawful
arrest.
We review the trial court’s order denying leave to
amend for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) “Failure to grant leave to amend constitutes an abuse
of discretion only if there is a reasonable possibility that the
defect can be cured by amendment.” (Schmid v. City and County
of San Francisco (2021) 60 Cal.App.5th 470, 496.) Leave to
amend is properly denied where the proposed amendment fails to
state a cause of action. (Graham v. Bank of America, N.A. (2014)
226 Cal.App.4th 594, 618-619.) In addition, “‘[a] plaintiff may not
avoid demurrer by pleading facts or positions in an amended
14
complaint that contradict the facts pleaded in the original
complaint or by suppressing facts which prove the pleaded facts
false. [Citation.]’” (McAllister v. Los Angeles Unified School Dist.
(2013) 216 Cal.App.4th 1198, 1206–1207, quoting Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877; see also
Astenius v. State of California (2005) 126 Cal.App.4th 472, 476–
477 (Astenius).)
The trial court here properly denied leave to amend
because appellants’ proposed amendment would not cure the
defects in their current pleadings. Additional allegations
regarding respondents’ knowledge of Dalton’s drinking problem
or mental health concerns does not establish a special
relationship between respondents and appellants. Without such
a relationship, respondents had no duty to protect appellants
and, therefore, no direct liability for negligence.
Similarly, the allegation that Dalton was on duty and
attempting unlawfully to arrest Popescu when he fired his
weapon does not cure the defect in the vicarious liability claims.
The factual allegations describe a confrontation that was not
work related and had no connection to Dalton’s employment.
Concluding this was an attempt to make an unlawful arrest
directly contradicts those factual allegations. Leave to amend
may properly be denied when the proposed amendment
contradicts admission made in the original pleadings. (Astenius,
supra, 126 Cal.App.4th at p. 477.)
CONCLUSION
The picture that emerges, even at the pleading state,
is clear. Dalton had a drinking problem and was drunk when he
shot Popescu. This was a private dispute. That Dalton said he
was a cop with a gun does not make the CHP liable for the
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shooting. The CHP has no liability for a shooting having no
causal nexus to CHP duties. And, finally, what we said in People
v. McNally (2015) 236 Cal.App.4th 1419, 1423-1424, bears
repetition: firearms and alcohol do not mix.
The judgment is affirmed. Costs to respondents.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Andrew M. Wolf, for Plaintiffs and Appellants.
Xavier Becerra and Rob Bonta, Attorneys General,
Danielle F. O’Bannon, Senior Assistant Attorney General,
Pamela J. Holmes, Supervising Deputy Attorney General, Shirley
R. Sullinger, Deputy Attorney General, for Plaintiff and
Respondent.